93 Decision Citation: BVA 93-16677
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-23 491 ) DATE
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THE ISSUES
Entitlement to service connection for a spinal disorder.
Entitlement to an increased rating for residuals of a shell
fragment wound of the left leg, currently evaluated as
10 percent disabling.
Entitlement to an increased rating for a shell fragment
wound of the right thigh and leg, currently evaluated as
10 percent disabling.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
T. J. Conway, Counsel
INTRODUCTION
The veteran served on active duty from November 1942 to
March 1945.
These matters came before the Board of Veterans' Appeals
(the Board) on appeal of a rating decision of the Chicago,
Illinois, Regional Office, (RO) of the Department of
Veterans Affairs (VA). The RO, by rating decision of March
1991, denied increased ratings for shell fragment wounds of
each lower extremity, evaluated as 10 percent disabling for
in excess of 20 years and protected by applicable laws and
regulations.
In August 1991, after additional evidence had been obtained
and considered, a rating decision was issued by the RO which
confirmed the action previously taken. The notice of
disagreement was received in December 1991. A statement of
the case as to denial of increased ratings for residuals of
wounds to the lower extremities was issued in December
1991. The substantive appeal was received in January 1992.
In May 1992, after the veteran was examined by VA, a rating
decision was issued which confirmed the prior denial of
increased ratings for right and left leg disabilities and
denied service connection for spinal disorder.
The notice of disagreement was received in June 1992. The
supplemental statement of the case was issued in July 1992.
In August 1992, the veteran filed a substantive appeal,
addressing the denial of service connection for a spinal
disorder.
In December 1992, the case was placed on the docket at the
Board. It was referred to the veteran's representative, the
Disabled American Veterans, and that organization submitted
additional written argument in March 1993.
CONTENTIONS OF APPELLANT ON APPEAL
It is asserted that the currently diagnosed pathology of the
lumbar spine is related to the mine explosion in service
which caused the injuries to the veteran's lower extremities
as well as other injuries, the residuals of which have been
recognized as service connected. An alternative contention
has been advanced that the veteran currently has a back
disorder which was caused by the necessity of his altering
his gait because of the residuals of the wounds to his lower
extremities.
In addition, it is asserted that the residuals of fragment
wounds to each of the veteran's lower extremities are of far
greater severity than the respectively assigned 10 percent
evaluations.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104
(West 1991), following review and consideration of all of
the evidence and material of record in the veteran's claims
folder, and for the following reasons and bases, it is the
decision of the Board that the evidence referable to the
claim for service connection for spinal disorder is in
equipoise so as to warrant a grant of service connection,
and that the preponderance of the evidence is against
assignment of increased ratings for service-connected
residuals of shell fragment wounds to the veteran's left leg
and his right thigh and leg.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
resolution of the veteran's claim has been obtained by the
RO.
2. The pathology of the lumbar spine, including probable
nerve impingement, which was found on the most recent VA
examination, cannot be disassociated from injuries received
because of the explosion of a mine which occurred while the
veteran was on active duty in combat, when all reasonable
doubt is resolved in his favor.
3. Residuals of shell fragment wounds to the veteran's left
leg are essentially asymptomatic, with retained metallic
bodies, and produce no more than moderate impairment to
Muscle Group XI.
4. The service-connected residuals of shell fragment wounds
to the veteran's right leg and thigh are essentially
asymptomatic, with retained foreign bodies, and produce no
more than moderate impairment of Muscle Group XIV, the
anterior thigh group.
CONCLUSIONS OF LAW
1. The currently diagnosed pathology of the veteran's
lumbosacral spine cannot be disassociated from injuries
sustained while he was in combat during World War II.
38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. § 3.304
(1992).
2. The requirements for assignment of a higher rating than
10 percent for residuals of shell fragment wounds to the
left leg are not met. 38 U.S.C.A. §§ 1155, 5107
(West 1991); 38 C.F.R. Part 4, Code 5322 (1992).
3. The requirements for the assignment of a higher
evaluation than 10 percent for residuals of shell fragment
wounds to the right thigh and leg are not met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 5314
(1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, we find that each of the veteran's claims is
"well-grounded" based on clinically recorded information,
and that each is plausible. We are also satisfied that all
relevant facts have been properly developed in compliance
with the duty to assist the veteran as mandated by
38 U.S.C.A. § 5107(a) (West 1991). We are satisfied that
each of the issues has been properly developed and each is
the proper subject for appellate action.
I. Service Connection for Spinal Disorder
It is not disputed, and is well documented in the service
medical records, including records compiled shortly after
the incident, that, in October 1944, while the veteran was
in combat in Germany, he was in close proximity to a mine
which exploded with the result that he received multiple
shrapnel fragment wounds, including multiple penetrating
wounds to both legs and thighs, estimated at 60 to 75 in
number. Based on service medical records, his wound
included a wound which produced a 4-centimeter-long scar
above the center of the right iliac crest.
Service medical records also show that, at an evacuation
hospital, and during subsequent hospitalizations in England,
numerous shrapnel fragments were removed from various
locations. When the veteran was examined by VA in September
1945, the scar referred to above was again found and was
described as being 1 1/2 inches by 3/4 inches in size, and
located "just above and lateral to the right anterosuperior
spine."
VA regulations, specifically, 38 C.F.R. § 3.304 (1992)
provides that, with regard to a veteran who served in
combat, satisfactory lay or other evidence that an injury or
disease began during combat will be accepted as proof of
service connection, if the evidence is consistent with the
circumstances, conditions and hardships of such service,
notwithstanding the lack of any official records of such
incurrence.
No complaints specifically referable to the back or lumbar
spine were clinically reported subsequent to service until
complaints of back pain were made in conjunction with VA
examination in October 1990. No abnormalities of the spine
were reported on that examination or during hospitalization
in July 1991, when the veteran was admitted to
hospitalization with a diagnosis of right lumbar
radiculopathy. Nonetheless, the examination by a VA
specialist in April 1992 resulted in a diagnosis of
degenerative disc disease with probable nerve impingement of
the lumbar spine and the examiner commented at that time
that the spinal pathology "could only be associated" with
residuals of wounds to the lower extremities if the disc
injury had occurred at the time of the "initial mine
explosion." The physician noted that the veteran related
onset of back pain for weeks after the explosion and
indicated that there was a "possible association."
When the entire evidence is considered carefully, including
the findings reported by the examiner for VA in 1945 and the
information clinically recorded in service, as well as the
comments made by the VA examiner in April 1992, it is the
Board's decision that the evidence, both positive and
negative, is approximately balanced so as to be in
equipoise.
Accordingly, with the full benefit of the doubt given the
veteran, it is our conclusion that the currently diagnosed
lumbar spine pathology cannot be disassociated from the
injuries sustained by the veteran during the mine explosion
in service so that such pathology is part and parcel of
residuals of multiple shell fragment wounds which were
incurred in service so that a grant of service connection
for that pathology is warranted. 38 U.S.C.A. §§ 1110, 5107
(West 1991); 38 C.F.R. § 3.304 (1992).
II. Residuals, Shrapnel Wounds, Left Lower Extremity
As has been stated, service medical records show that, in
October 1944, the veteran sustained multiple fragment wounds
from a mine which exploded in close proximity to his
position. These wounds include multiple penetrating wounds
of the left leg which were debrided, with retained metallic
fragments. X-rays in February 1945 showed several small
retained metallic fragments in soft tissues of the left
lower extremity, and along the medial surface of the left
knee, without any apparent bony abnormalities. It was
clinically noted in February 1945 that there was very
demonstrable weakness of extension to the left foot, which
was probably due to disuse or guarding during recovery.
When the veteran was seen by the VA examiner in September
1945, it was reported that there was no laxity or
instability of the left knee, and that he walked without a
limp. A linear scar, 2 inches by 1/8 inch, was found on the
mesial surface of the midsection of the left leg, and an
operation scar, from removal of metallic fragments, which
was neither adherent nor tender, was also noted. The
examiner commented that examination of the left knee showed
"nothing of any particular note." Motions were reported to
be well within normal range, without cruciate or lateral
instability.
In November 1945, the RO, pursuant to VA's 1933 Schedule for
Rating Disabilities, (the rating schedule), assigned a
50 percent evaluation from the day following the date the
veteran was discharged from service to September 1945, and a
noncompensable evaluation for a shrapnel scar of the left
leg, Group X, under the then applicable diagnostic code.
In September 1948, a 10 percent evaluation was assigned for
residuals of the left leg wound, involving Muscle Group XI,
under the provisions of Code 5311 of the then current rating
schedule. A 10 percent evaluation has remained in effect,
and is now protected under the laws and regulations
pertaining to administration of VA benefits.
X-rays taken in conjunction with the VA examination in
October 1990 revealed small metallic densities in the left
leg. Surgical clips were also present. There were no
fractures indicated. The specialist who examined the
veteran reported that the wound to the left leg with
involvement of Muscle Group XI had healed, with symptomatic
residuals, and retained metallic foreign bodies.
When the veteran was most recently examined by a VA
orthopedist in April 1992, he complained of pain in his
back, right hip and leg, with radiation, severe, without
associated paresthesias. Complaints of flank pain in the
left hip, also nonradiating, were noted. Flexion was
135 degrees in each knee, and 110 degrees in each hip with
rotation of the right hip of 10/40 degrees, and in the left
hip 10/30 degrees. Bilateral hip abduction was 30 degrees.
Diagnostically it was reported that there were small
metallic fragments in the soft tissue of the left leg shown
by X-rays. The diagnostic impression was soft tissue
shrapnel wounds of the left leg, well healed and without
effect on function.
Under the applicable criteria, as set out in Code 5311 of
the rating schedule, pertaining to Muscle Group XI, the
posterior and lateral crural muscles and muscles of the
calf, including triceps surae (gastrocnemius and soleus),
tibialis superior, peroneus longus, flexor hallucis longus,
flexor digitorum longus, and popliteus, with function of
propulsion, plantar flexion of the foot, stabilization of
the arch, flexion of the toes and flexion of the knee, a
noncompensable evaluation is assigned for slight impairment,
a 10 percent evaluation for moderate impairment, a
20 percent evaluation for moderately severe impairment, and
a 30 percent evaluation for severe impairment.
In the judgment of the Board, the evidence, both positive
and negative, is not approximately balanced. Thus, a
finding that more than moderate impairment is currently
produced by residuals of multiple fragment wounds to the
left leg with retained foreign bodies is not supported by
the evidence, and a higher evaluation than the current
10 percent is not for assignment.
As considered potential application of the various
provisions of 38 C.F.R. Parts 3 and 4, whether or not they
are raised by the appellant, pursuant to the ruling of the
United States Court of Veterans Appeals (the Court) in
Schafrath v. Derwinski, 1 Vet.App. 589 (1991), we find that
the following sections do not provide a basis upon which to
assign a higher disability evaluation for residuals of
fragment wounds to the left lower extremity: 4.1, 4.2, 4.10,
4.40, 4.41, 4.42 and 4.45. In this regard, the VA
examinations are adequate for rating purpose and the
explicit finding of no functional impairment due to the left
leg wound would preclude assignment of a higher disability
evaluation under other provisions of 38 C.F.R. Parts 3 and
4. We have also consider the February 1945 entry in the
sevice medical records that there was "very demonstrable
weakness of extension of the left foot" present. It has
been noted that at that time it was stated that the weakness
was "probably due to disuse and guarding during recovery."
In our view, it is apparent from the record that no
significant weakness of the left lower extremity is
currently shown which can be attributed to the
service-connected residuals of fragment wounds. There is no
suggestion in the evidence that the veteran's disabilities
of the left lower extremity, including those involving the
knee, represent such an exceptional or unusual disability
picture as to render inapplicable the application of the
regular schedular standards, so as to warrant assignment of
an extraschedular evaluation under 38 C.F.R. 3.321(b)(1)
(1992). As has been reported, the evidence establishes that
the residuals, including those related to retention of
metallic foreign bodies, do not present marked interference
with the veteran's employment.
In summary, the evidence before us is consistent with the
moderate impairment contemplated by the schedular criteria
for the 10 percent evaluation currently in effect.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4,
Code 5322 (1992).
III. Residuals, Shrapnel Wounds, Right Leg and Thigh
The mine explosion which resulted in the pathology for which
service connection was granted by the RO in 1945 has been
adequately described above, and further repetition of that
material would be redundant.
Service medical records show that the wounds which the
veteran sustained included multiple puncture and penetrating
wounds to his right leg and right thigh, which were debrided
in a military evacuation hospital. X-rays in February 1945
showed the presence of numerous small fragments in the right
thigh along the anterior and mesial border of the middle and
lower thirds of the right femur, with no indications of bone
abnormalities. It was reported that the scars involving the
right thigh were well healed. The scars from the wounds to
the right lower extremity were again described at the time
of VA examination in September 1945, when it was noted, as
stated above, that the veteran walked without a limp. This
information was also reported on VA examination in September
1948, and on each examination, the scars were described as
well healed and nonadherent.
On VA examination in April 1992, small metallic fragments
were found by X-ray in the soft tissue of the right thigh,
with no indication of functional impairment. Injuries to
Muscle Group XIV, the anterior thigh group, involving the
sartorius, and tensor femoris, with function of extension of
the knee, simultaneous function of the hip and flexion of
the knee, tensor fascia lata and iliotibial (Maissiat's)
band acting with Group XII, in posterior support of the body
acting with the hamstrings, and synchronizing the hip and
knee, are rated under Diagnostic Code 5314, which provides
for a noncompensable evaluation for slight impairment, a
10 percent evaluation for moderate impairment, 30 percent
evaluation for moderately severe impairment, and a
40 percent evaluation for severe impairment.
When the criteria as set out above are applied to the
clinically reported information in this case, it is our
judgment that no more than moderate impairment is produced
by residuals of wounds to the right leg and thigh,
consistent with the currently assigned 10 percent evaluation.
We find that evidence does not suggest such an unusual or
exceptional disability picture regarding the right lower
extremity which would render inapplicable the application of
the regular schedular standards so that assignment of an
extraschedular evaluation would be warranted. Neither
hospitalization nor marked interference with employment
beyond that contemplated by the currently assigned rating is
reflected in the record. The absence of demonstrated
functional impairment on the April 1992 VA examination
effectively precludes the prospect of an award of any higher
rating under other provisions of 38 C.F.R. Parts 3 and 4.
As with the left lower extremity, we do not find that the
service-connected pathology of the right knee presents
marked interference with the veteran's employment, and, in
our opinion, the greater weight of the evidence does not
support the contentions advanced by the veteran and his
representative. In the circumstances assignment of a higher
evaluation than the currently assigned 10 percent would not
be warranted. 38 U.S.C.A. §§ 1155, 5107 (West 1991);
38 C.F.R. Part 4, Code 5314 (1992).
ORDER
Service connection is granted for a spinal disorder.
Increased ratings are denied for residuals of mine fragment
wounds of the left and right lower extremities.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
MEMBER TEMPORARILY ABSENT THOMAS J. DANNAHER
RICHARD B. FRANK
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.